Where to, Next?

By:  Alyssa C. Hughes

The great (or at least famous) Oliver Wendell Holmes, Jr., wrote a seminal piece for the great (or at least famous) Harvard Law Review in 1897 that made a quite daring argument: the study of law is the study not of rules or science, but of prediction.[1] More or less, he argues that the job of a lawyer is to advise clients on what they can do, how the law will respond, what a court will say; thus, we must predict for them the future.

In that vein and with the tempered expectations we simply must apply to this author as compared to the author of The Path of the Law, please indulge me in donning my silk robes and dusting off my crystal ball for a peek into what’s coming next in the wild wonderful world of premises liability.

Back in May, Partner Sean Devenny wrote a post about the decision from the Indiana Court of Appeals in Hamilton v. Steak ‘n Shake Operations, Inc. which held the Steak ‘n Shake restaurant which was the scene of a fight that led to a shooting had a legal duty to protect the victim of that shooting. The court, as Sean deftly explained, took issue with the fact that the fight had gone on for around thirty minutes, and was escalating. In such a situation, therefore, the employees had knowledge of the danger, and the court found a legal duty to take action to protect Ms. Hamilton.

That decision came as a bit of a surprise, since courts have in the past dismissed claims of a duty owed to patrons of a restaurant or bar that were injured in some kind of violent altercation. (For a closer look at this decision and the precedent leading towards it, see Sean’s post). At the time his article was posted, he noted that the ruling was being appealed to the Indiana Supreme Court. Sean felt that if the Supreme Court decided to accept the case, it would be interesting to see what came next in this line of caselaw that is effectively shaping a property owner’s duty to a patron for criminal acts which occur on its property.

Sean was not alone. The United States District Court for the Southern District of Indiana also felt the case may be taken up by the Indiana Supreme Court. In Doe No. 62 v. Delta Tau Delta Beta Alpha Chapter, No. 116CV01480JMSDML, 2018 WL 1858202 (S.D. Ind. Apr. 18, 2018), the court grappled with charges of negligence stemming from an alleged sexual assault that occurred in a college fraternity house in Indiana during a fraternity sponsored event. The plaintiff brought four claims of negligence against the chapter after the accused assaulter pled guilty to a charge of battery. The basic nature of the suit was an argument that the fraternity had a duty to protect her from sexual assault while she was a guest at the fraternity.

In ruling on a Motion to Dismiss the claims filed by the Defendant Fraternity, the court first took a long stroll through the precedential landscape, touching upon Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 384 (Ind. 2016), Rogers v. Martin, 63 N.E.3d 316 (Ind. 2016), and spent a fair amount of time dissecting the decision in the Hamilton v. Steak ‘n Shake case. After all that work, questions remained, as they so often do. The court therefore took the totally allowable but definitely unusual step of certifying four different questions of Indiana law to the Indiana Supreme Court, to wit:

  • Under the standard articulated in Rogers and Goodwin, may a court consider the actual knowledge of a defendant in determining the foreseeability of an event in the context of a duty analysis? If so, does it properly do so by framing either the class of plaintiff or the harm in terms of that knowledge?
  • Under Indiana law, does a fraternity owe a duty to a female social invitee to protect her from sexual assault by a member of the fraternity during a fraternity-sponsored event?
  • Does the analysis change where there is evidence that prior to the event some fraternity members were told by a third party that the fraternity member had on an earlier occasion sexually assaulted a female?
  • Is the analysis impacted by evidence that the female social invitee may have been under the influence of alcohol, most of which was consumed off premises, at the time of the sexual assault? [2]

It would be a marvelous and much different world if we got answers to questions when we (or those much smarter than us) thought they were necessary. Alas, as of June 1, 2018, the Indiana Supreme Court officially denied transfer to hear the case. All Justices concurred with that decision, leaving us to the incredibly difficult task set by Oliver Wendell Holmes: where to, next?

One thing seems clear, and that is the definition of duty owed to invitees of a property is ultimately widening, but in a manner that is not entirely obvious. Can something be clear about its muddiness? Bear with me. We know that knowledge of an ongoing and escalating incident will affect the analysis and shift the scales towards imposing a duty, as we saw in Hamilton. We saw the reverse side of that coin in Goodwin v. Yeakle’s Sports Bar & Grill, Inc., where the court found no duty owed to a patron who was shot, when there was no indication to anyone that one patron would suddenly shoot another patron. However, there’s a lot we don’t know (answers to the four questions posed to the Indiana Supreme Court by the court in Doe No. 62 v. Delta Tau Delta Beta Alpha Chapter, or why the Colts fundamentally refuse to play good football come to mind).

The major reason this area is so hard to give concrete advice on is because Indiana courts have recently shifted the analysis of the foreseeability component of the duty analysis from fact driven to a more amorphous, subjective inquiry. The court in Rogers v. Martin, 63 N.E.3d 316 (Ind. 2016) stated that the foreseeability analysis should not focus on the specific facts of the case, but on the general class of persons to which the Plaintiff was a member and whether the harm suffered was the kind normally to be expected.  That question becomes especially sticky in the case of an alleged sexual assault on a college aged woman at a fraternity house: what general class of persons does a fraternity member belong to? What kind of harm do we “normally expect” to occur at such parties?

Even setting aside the facts of the Doe No. 62 v. Delta Tau Delta Beta Alpha Chapter case, it’s hard to apply that analysis to hypothetical situations without a clear indication of how it is supposed to work. Like I said, it’s only really clear that we don’t know where things are going. At some point, the court will have to step in and give us more answers as to the new foreseeability test set out in Rogers v. Martin, 63 N.E.3d 316 (Ind. 2016).

In broad strokes, courts have been more willing to find a legal duty on the part of property owners for victims of criminal activities on their premises. And while that may not be exactly the amount of specificity you wanted from your legal fortune teller, it still may be enough to give you a plan of action or better level of awareness moving forward for your business or social gatherings.


[1] The Path of the Law, Oliver Wendell Holmes, Jr., 10 Harvard Law Review 457 (1897).

[2] As a side note, the court in Doe ultimately denied the Fraternity’s Motion for Summary Judgment as to the question of duty owed Jane Doe but did so without prejudice to further argument following review by the Indiana Supreme Court.